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Planterra RidgeDECLARATION OF PROTECTIVE COVENANTS FOR PLANTERRA RIDGE Prepared By: David N. Dorough, Jr. DODSON, FELDMAN & DOROUGH Attorneys At Law 6000 Lake Forrest Drive, N.W., Suite 300 Atlanta, Georgia 30328 (404) 250-9800 ARTICLE I. 1.01 1.02 1.03 1.04 1.05 1.06 1.07 1.08 1.09 1.10 1.11 1.12 1.13 1.14 1.15 ARTICLE II. 2.01 2.02 ARTICLE III. 3.01 3.02 ARTICLE IV. 4.01 4.02 4.03 4.04 4.05 DECLARATION OF PROTECTIVE COVENANTS FOR PLANTERRA RIDGE - TABLE OF CONTENTS - DEFINITIONS .......................... Association Board of Di~2222222222222222222 Community-Wide Standard .............. Declarant ............................ Lot .................................. Mortgage.. Occupant ............................. Owner ................................ Person ....... Supplementary'~i~2~i~][]][]]]]][[ Total Association Vote ............... Paqe Number PROPERTY SUBJECT TO THIS DECLARATION. Property Hereby Subjected To This Declaration ................ Other Property ....................... ASSOCIATION MEMBERSHIP AND VOTING RIGHTS Membership. ASSESSMENTS Purpose of Assessments ............... Creation of the Lien and Personal Obligation for Assessments.~i~ Computation .................. Special Assessments .................. Lien for Assessments ................. -i- 4.06 4.07 4.08 4.09 ARTICLE V. 5.01 5.02 5.03 ARTICLE VI. 6.01 6.02 6.03 6.04 6.05 6.06 6.07 6.08 6.09 6.10 6.11 6.12 6.13 6.14 6.15 6.16 6.17 6.18 6.19 6.20 6.21 6.22 6.23 6.24 6.25 - TABLE OF CONTENTS - (Continued) Paqe Number Effect of Nonpayment of Assessments: Remedies of the Association ........ Date of Commencement of Assessments.. Specific Assessments ................. Budget Deficits During Declarant Control ............................ MAINTENANCE; CONVEYANCE OF COMMON PROPERTY TO ASSOCIATION ..................... Association's Responsibility ......... Owner's Responsibility ............... Conveyance of Common Property by Declarant to Association ........... 10 USE RESTRICTIONS AND RULES ........... 10 General ......... Architectural Standards .............. Signs ..... ===================================== Parking. Occupants Bound ...................... Animals and Pets ..................... Nuisance .... .... ..................... Unsightly or Unkempt Conditions ...... Antennas ....... . ................ . .... Tree Removal ......................... Drainage ....... Garbage Cans, Woodpiles, Etc ......... Subdivision of Lot ................... Fences.. Air Conditioning Units ............... Lighting ............................. Artificial Vegetation, Exterior Sculpture, and Similar Items ....... Energy Conservation Equipment ........ Swimming Pools ....................... 10 10 10 13 13 14 14 14 14 14 15 15 15 15 16 16 16 16 16 16 16 16 17 17 17 -ii- ARTICLE 12.01 12.02 12.03 12.04 12.05 12.06 ARTICLE 13.01 13.02 13.03 13.04 13.05 13.06 13.07 13.08 13.09 13.10 13.11 13.12 13.13 13.14 13.15 13.16 13.17 XII · XIII. - TABLE OF CONTENTS - (Continued) CERTAIN RECREATIONAL FACILITIES WHICH ARE NOT COMMON PROPERTY ...... General... .... . ........ Ownership ~& 6~i~ ~ Golf Course ........................ Right to Use ......................... View Impairment ...................... Limitations on Amendments ............ Jurisdiction and Cooperation ......... GENERAL PROVISIONS ................... Enforcement .......................... Self-Help. Duration..]][]][[[i[[[]]][]i]][[[]i[] Amendment. Gender and Grammar ................... Severability Inspection of Books and Records ...... Financial Review ..................... Notice of Sale, Lease or Acquisition ........................ Paqe Number 29 29 29 29 30 30 30 30 3O 31 31 32 32 33 33 33 33 33 33 34 34 34 35 35 35 -iv- DECLARATION OF PROTECTIVE COVENANTS FOR PLANTERRARIDGE THIS DECLARATION is made on the date hereinafter set forth by The Equitable Life Assurance Society of the United States, a New York corporation (hereinafter sometimes called "Declarant"); W I TNES SETH WHEREAS, Declarant is the owner of the real property described in Section 2.01 of this Declaration; and WHEREAS, Declarant desires to subject the real property described in Section 2.01 hereof to the provisions of this Declaration to create a residential community of single-family housing and to provide for the subjecting of other real property to the provisions of this Declaration; NOW, THEREFORE, Declarant hereby declares that the real property described in Section 2.01 of this Declaration is hereby subjected to the provisions of this Declaration and shall be held, sold, transferred, conveyed, used, occupied, and mortgaged or otherwise encumbered subject to the covenants, conditions, restrictions, easements, assessments, and liens, hereinafter set forth, which are for the purpose of protecting the value and desirability of, and which shall run with the title to, the real property hereby and hereafter made subject hereto, and shall be binding on all persons having any right, title, or interest in all or any portion of the real property now and hereafter made subject hereto, their respective heirs, legal representatives, successors, successors-in-title, and assigns and shall inure to the benefit of each and every owner of all or any portion thereof. Article I Definitions The following words, when used in this Declaration or in any Supplementary Declaration, shall have the following meanings: 1.01 "Association" means Planterra Ridge Community Association, Inc., a Georgia nonprofit corporation, its successors and assigns. 1.02 "Board of Directors" or "Board" means the appointed or elected body of the Association, having its normal meaning under Georgia law. 1.03 "Bylaws" means the Bylaws of Planterra Ridge Community Association, Inc., attached to this Declaration as Exhibit "C" and incorporated herein by this reference. 1.04 "Common Property" means any and all real and personal property and easements and other interests therein, together with the facilities and improvements located thereon, now or hereafter owned by the Association for the common use and enjoyment of the Owners. 1.05 "Community" refers to that certain real property and interests therein described in Exhibit "A", attached hereto, and (a) such additions thereto as may be made by Declarant by Supplementary Declaration of all or any portion of the real property described in Exhibit "B" attached hereto; and (b) such additions thereto as may be made by the Association by Supplementary Declaration. 1.06 "Community-Wide Standard" means the standard of conduct, maintenance, or other activity generally prevailing in the Community. Such standard may be more specifically determined by the Board of Directors of the Association. Such dete~nation, however, must be consistent with the Community-Wide Standard originally established by the Declarant. 1.07 "Declarant" means The Equitable Life Assurance Society of the United States, a New York corporation, and its successors-in-title and assigns, provided any such successor-in-title or assign shall acquire for the purpose of development or sale all or any portion of the remaining undeveloped or unsold portions of the real property described in Exhibit "A", attached hereto, or in Exhibit "B", attached hereto, and provided further, in the instrument of conveyance to any such successor-in-title or assign (or a separate recorded instrument of assignment), such successor-in-title or assign is designated as the "Declarant" hereunder by the grantor of such conveyance, which grantor shall be the "Declarant" hereunder at the time of such conveyance; provided, further, upon such designation of such -2- successor Declarant, all rights of the former Declarant in and to such status as "Declarant" hereunder shall cease, it being understood that as to all of the property described in Exhibit "A" and Exhibit "B", attached hereto, which is now or hereafter subjected to this Declaration, there shall be only one (1) "Declarant" hereunder at any one point in time. 1.08 "Lot" means any plot of land within the Community, whether or not improvements are constructed thereon, which constitutes or will constitute, after the construction of improvements, a single-family dwelling site as shown on a plat recorded in the land records of the county where the Community is located. The ownership of each Lot shall include, and there shall pass with the title to each Lot as an appurtenance thereto, whether or not separately described, all of the right, title, and interest of an Owner in the Common Property, together with membership in the Association. 1.09 "Mortgage" means any and all instruments used for the purpose of encumbering real property in the Community as security for the payment or satisfaction of an obligation, including, without limitation, any mortgage, deed to secure debt or deed of trust. 1.10 "Mortqaqee" means the holder of a Mortgage. 1.11 "Occupant" means any Person occupying all or any portion of a Lot or other property located within the Community for any period of time, including, without limitation, the Owner and any tenant of the Owner of such property. 1.12 "Owner" means the record owner, whether one or more Persons, of the fee simple title to any Lot located within the Community, excluding, however, any Person holding such interest merely as security for the perfo£mance or satisfaction of any obligation. 1.13 "Person" means any legal entity, including, without limitation, any natural person, corporation, joint venture, partnership (general or limited), or association. 1.14 "Supplementary Declaration" means an amendment or supplement to this Declaration which subjects additional property to this Declaration and/or imposes additional restrictions and obligations on the land described therein. 1.15 "Total Association Vote" means the votes attributable to the entire membership of the Association (including votes of Declarant) as of the record date for such action, whether or not such members are present or represented at the meeting, if any, where such votes are to be cast. If, for example, and without limitation, a majority of the Total Association Vote is required -3- to approve a matter, such matter must receive more than half of the votes attributable to all existing members of the Association as of the record date for such action, whether or not such members are present or represented at the meeting, if any, where such votes are to be cast. As a further illustration, if a majority vote is required to approve a matter (and the term Total Association Vote is not used), such matter must receive more than half of the votes cast by the members entitled to vote on the matter. Article II Property Subject To This Declaration 2.01 Property Hereby Subjected To This Declaration. The real property which is, by the recording of this Declaration, subject to the covenants and restrictions hereafter set forth and which, by virtue of the recording of this Declaration, shall be held, transferred, sold, conveyed, used, occupied, and mortgaged or otherwise encumbered subject to this Declaration is the real property described in Exhibit "A" attached hereto and by this reference made a part hereof. 2.02 Other Property. Only the real property described in Section 2.01 is hereby made subject to this Declaration; provided, however, by one or more Supplementary Declarations, Declarant and the Association have the right, but not the obligation, to subject other real property to this Declaration, as hereinafter provided. Article III Association Membership and Votinq Riqhts 3.01 Membership. Every Person who is the record owner of a fee or undivided fee interest in any Lot that is subject to this Declaration shall have a membership in the Association. The foregoing is not intended to include Persons who hold an interest merely as security for the perfor,~nce of an obligation, and the giving of a security interest shall not te~,,~nate the Owner's membership. No Owner, whether one or more Persons, shall have more than one membership per Lot. In the event of multiple Owners of a Lot, votes and rights of use and enjoyment shall be as provided in this Declaration and in the Bylaws. Membership shall be appurtenant to and may not be separated from ownership of a Lot. The rights and privileges of membership, including the right to vote and to hold office, may be exercised by a member or the member's spouse, but in no event shall more than one vote be cast nor office held for each Lot owned. 3.02 Votinq. Members shall be entitled to one vote for each Lot owned. When more than one Person holds an ownership -4- General assessments shall be levied equally on all similarly situated Lots and shall be paid in such manner and on such dates as may be fixed by the Board of Directors, which may include, without limitation, acceleration, upon ten (10) days' written notice for delinquents. Unless otherwise provided by the Board, the assessment shall be paid in one annual installment. 4.03 Computation. It shall be the duty of the Board to prepare a budget covering the estimated costs of operating the Association during the coming year, which shall include a capital contribution or reserve in accordance with a capital budget separately prepared. The Board shall cause the budget and the assessments to be levied against each Lot for the following year to be delivered to each member at least thirty (30) days prior to the end of the current fiscal year. The budget and the assessment shall become effective unless disapproved at a meeting by a majority of the Total Association Vote and the Declarant consents to such disapproval so long as the Declarant owns any property for development and/or sale in the municipality of Peachtree City, Georgia. Notwithstanding the foregoing, however, in the event the membership disapproves the proposed budget or the Board fails for any reason so to determine the budget for the succeeding year, then and until such time as a budget shall have been detezmined, as provided herein, the budget in effect for the then current year shall continue for the succeeding year. 4.04 Special Assessments. In addition to the other assessments authorized herein, the Association may levy special assessments from time to time if approved by two-thirds (2/3) of the Total Association Vote and if Declarant consents to such speoial assessments so long as the Declarant owns any property for development and/or sale in the municipality of Peachtree City, Georgia. Special assessments shall be paid as determined by the Board. The Board may permit special assessments to be paid in installments extending beyond the fiscal year in which the special assessments are imposed. 4.05 Lien for Assessments. Ail sums assessed against any Lot pursuant to this Declaration, together with late charges, interest, costs of collection, including, without limitation, reasonable attorney's fees actually incurred, as provided herein, shall be secured by a lien on such Lot in favor of the Association. Such lien shall be superior to all other liens and encumbrances on such Lot, except for (a) liens for ad valorem taxes; (b) liens for all sums secured by a first Mortgage duly recorded in the land records of the county where the Community is located; or (c) liens for all sums secured by a Mortgage to Declarant duly recorded in the land records of the county where the Community is located. Ail other Persons acquiring liens or encumbrances on any Lot after this Declaration shall have been recorded in such records -6- shall be deemed to consent that such liens or encumbrances shall be inferior to liens for future assessments, as provided herein, whether or not prior consent is specifically set forth in the instruments creating such liens or encumbrances. 4.06 Effect of NonDayment of Assessments: Remedies of the Association. Any assessments or installments thereof which are not paid when due shall be delinquent. Any assessment or installment thereof delinquent for a period of more than ten (10) days shall incur a late charge in an amount as the Board may from time to time detezmine. The Association may cause a notice of delinquency to be given to any member who has not paid within ten (10) days following the due date. In the event that the assessment remains unpaid after sixty (60) days, the Association may, as the Board shall determine, institute suit to collect such amounts and/or to foreclose its lien. Each Owner, by acceptance of a deed or as a party to any other type of a conveyance, vests in the Association or its agents the right and power to bring all actions against such Owner personally, for the collection of such charges as a debt or to foreclose the lien. The lien provided for in this Declaration shall be in favor of the Association and shall be for the benefit of all Owners. The Association, acting on behalf of the Owners, shall have the power to bid on the Lot at any foreclosure sale or to acquire, hold, lease, mortgage, or convey the same. No Owner may waive or otherwise exempt such Owner from liability for the assessments provided for herein, including, by way of illustration, but not limitation, abandonment of the Lot. No diminution or abatement of any assessment shall be claimed or allowed by reason of any failure of the Association to take some action or perfo£m some function required to be taken or performed by the Association under this Declaration or the Bylaws, or for inconvenience or discomfort arising from the making of repairs or improvements which are the responsibility of the Association, or from any action taken by the Association to comply with any law, ordinance, or order or directive of any governmental authority, the obligation to pay assessments being a separate and independent covenant on the part of each Owner. Ail payments shall be applied first to costs, then to late charges, then to interest and then to delinquent assessments. 4.07 Date of Commencement of Assessments. The assessments provided for herein shall commence as to a Lot subject to this Declaration on the first day of the month following the conveyance of such Lot to a Person who has not purchased such Lot for the purpose of construction of a residence and resale of such Lot and residence. Lots which have not been so conveyed shall not be subject to assessment. Assessments shall be due and payable in a manner and on a schedule as the Board of Directors may provide. The first annual assessment shall be adjusted -7- according to the number of months then remaining in that fiscal year. 4.08 Specific Assessments. The Board shall have the power to specifically assess pursuant to this Section as, in its discretion, it shall deem appropriate. Failure of the Board to exercise its authority under this Section shall not be grounds for any action against the Association or the Board of Directors and shall not constitute a waiver of the Board's right to exercise its authority under this Section in the future with respect to any expenses, including an expense for which the Board has not previously exercised its authority under this Section. Fines levied pursuant to this Declaration and the costs of maintenance performed by the Association for which the Owner is responsible shall be specific assessments. The Board may also specifically assess Owners for the following Association expenses (except for expenses incurred for maintenance and repair of items which are the maintenance responsibility of the Association as provided herein): (a) Expenses of the Association which benefit less than all of the Lots may be specifically assessed equitably among all of the Lots which are benefitted according to the benefit received. (b) Expenses of the Association which benefit all Lots, but which do not provide an equal benefit to all Lots, may be assessed equitably among all Lots according to the benefit received. 4.09 Budqet Deficits Durinq Declarant Control. For so long as the Declarant has the authority to appoint the directors and officers of the Association, Declarant may: (a) advance funds to the Association sufficient to satisfy the deficit, if any, between the actual operating expenses of the Association (but specifically not including an allocation for capital reserves), and the sum of the annual, special and specific assessments collected by the Association in any fiscal year, and such advances shall be evidenced by promissory notes from the Association in favor of the Declarant; or (b) cause the Association to borrow such amount from a commercial lending institution at the then prevailing rates for such a loan in the local area of the Community. The Declarant in its sole discretion may guarantee repayment of such loan, if required by the lending institution, but no Mortgage secured by the Common Property or any of the improvements maintained by the Association shall be given in connection with such loan. -8- Article V Maintenance; Conveyance of Common Property to Association 5.01 Association's ResDonsibility. The Association shall maintain and keep in good repair the Common Property. This maintenance shall include, without limitation, maintenance, repair, and replacement, subject to any insurance then in effect, of all landscaping and improvements situated on the Common Property. The Association shall also maintain all Community recreational facilities, if any, including, without limitation, payment for water and electricity provided to all such Community recreational facilities. In addition, the Association shall have the riqht, but not the obligation, to maintain other property not owne~ by the Association, whether within or without the Community, where the Board has determined that such maintenance would benefit all Owners. In the event that the Association detezmines that the need for maintenance, repair, or replacement, which is the responsibility of the Association hereunder, is caused through the willful or negligent act of an Owner, or the family, guests, lessees, or invitees of an Owner, and is not covered or paid for by insurance, in whole or in part, then the Association may perform such maintenance, repair or replacement at such Owner's cost and expense, and all costs thereof, not covered or paid for by insurance, shall be assessed against the Owner as a specific assessment. The foregoing maintenance shall be performed consistent with the Community-Wide Standard. 5.02 Owner's Responsibility. Ail maintenance of the Lot and all structures, landscaping, and other improvements thereon shall be the sole responsibility of the Owner thereof, who shall maintain such Lot in a manner consistent with the Community-Wide Standard and this Declaration. In the event that the Board of Directors determines that any Owner has failed or refused to discharge properly any of such Owner's obligations with regard to the maintenance, repair, or replacement of items for which such Owner is responsible hereunder, the Association shall, except in an emergency situation, give the Owner written notice of the Association's intent to provide such necessary maintenance, repair, or replacement at the Owner's sole cost and expense. The notice shall set forth with reasonable particularity the maintenance, repairs, or replacement deemed necessary. The Owner shall have ten (10) days after receipt of such notice within which to complete such maintenance, repair, or replacement, or, in the event that such maintenance, repair, or replacement is not capable of completion within a ten (10) day period, to commence such work which shall be completed within a reasonable time. If -9- any Owner does not comply with the provisions hereof, the Association may provide any such maintenance, repair, or replacement at such Owner's sole cost and expense, and all costs shall be assessed against the Owner and the Lot as a specific assessment. 5.03 Conveyance of Common Property by Declarant to Association. The Declarant may transfer or convey to the Association any personal property and any improved or unimproved real property, leasehold, easement, or other property interest. Such conveyance shall be accepted by the Association, and the property shall thereafter be Common Property to be maintained by the Association for the benefit of its members. Declarant shall not be required to make any improvements whatsoever to property to be conveyed and accepted pursuant to this Section. Article VI Use Restrictions and Rules 6.01 General. This Article, beginning at Section 6.02, sets out certain use restrictions which must be complied with by all Owners and Occupants. These use restrictions may only be amended in the manner provided in Section 13.04, hereof regarding amendment of this Declaration. In addition, the Board may, from time to time, without a vote of the members, promulgate, modify, or delete rules and regulations applicable to the Community. Such rules and regulations shall be distributed to all Owners and Occupants prior to the date that they are to become effective and shall thereafter be binding upon all Owners and Occupants until and unless overruled, canceled, or modified by a majority of the Total Association Vote and the consent of Declarant so long as the Declarant owns any property for development and/or sale in the municipality of Peachtree City, Georgia. 6.02 Residential Use. Ail Lots shall be used for residential purposes exclusively. No business or business activity shall be carried on, in or upon any Lot at any time except with the written approval of the Board. Leasing of a Lot shall not be considered a business or business activity. However, the Board may permit a Lot to be used for business purposes so long as such business, in the sole discretion of the Board, does not otherwise violate the provisions of this Declaration or the Bylaws, does not create a disturbance, may not be detected from outside of the Lot and does not unduly increase traffic flow or parking congestion. The Board may issue rules and regulations regarding permitted business activities. 6.03 Architectural Standards. No exterior construction, alteration, addition, or erection of any improvements of any nature whatsoever, including, without limitation, a change in the color of any improvement, shall be commenced or placed upon any -10- part of the C~mmunity, except such as is installed by the Declarant, or as is approved in accordance with this Section, or as is otherwise expressly permitted herein. No exterior construction, addition, erection, or alteration shall be made unless and until plans and specifications showing at least the nature, kind, shape, height, materials, and location shall have been submitted in writing to and approved by an Architectural Review Board established by Declarant. The Declarant may employ for the Architectural Review Board architects, engineers, or other Persons as it deems necessary to enable the Architectural Review Board to perform its review. The Architectural Review Board may, from time to time, delegate any of its rights or responsibilities hereunder to one or more duly licensed architects or other qualified Persons, which shall have full authority to act on behalf of the Architectural Review Board for all matters delegated. The Architectural Review Board shall adopt design and development guidelines and application and review procedures which shall be set forth in the architectural guidelines. Copies of the architectural guidelines shall be available from the Architectural Review Board for review. The Architectural Review Board shall have sole and full authority to prepare and to amend the architectural guidelines. The Architectural Review Board shall make the architectural guidelines available to Owners, builders and developers who seek to engage in development of or construction upon all or any portion of the Community and such Owners, builders and developers shall conduct their operations strictly in accordance therewith. The Declarant shall have the right to appoint all members of the Architectural Review Board. There shall be no surrender of this right except in a written instrument in recordable form executed by Declarant and recorded in the land records of the Clerk of the Superior Court of Fayette County, Georgia. Upon the surrender in writing of such right, the Board of Directors shall appoint the members of the Architectural Review Board, which shall then and thereafter be a committee of the Association. The Declarant hereby appoints Peachtree City Development Corporation as the sole member of the Architectural Review Board to serve in such capacity for the term of this Declaration, unless such appointment is sooner terminated in writing by the Declarant and either (a) another appointment is made by Declarant or (b) the Declarant surrenders its right hereunder to appoint the members of the Architectural Review Board. If the Architectural Review Board fails to approve or to disapprove submitted plans and specifications within ten (10) business days after the plans and specifications have been submitted to it, such approval shall be deemed to have been given, but as to any such approval the Owner and the Owners's heirs, successors and assigns shall be bound by and shall comply with all other provisions of this Declaration. As a condition of -11- approval unde~ this Section, each Owner, on behalf of such Owner and such Owner's successors-in-interest, shall assume all responsibilities for maintenance, repair, replacement, and insurance to and on any change, modification, addition, or alteration. In the discretion of the Architectural Review Board, an Owner may be made to verify such condition of approval by a recordable written instrument acknowledged by such Owner on behalf of such Owner and such Owner's successors-in-interest. The Architectural Review Board shall be the sole arbiter of such plans and may withhold approval for any reason, including purely aesthetic considerations, and it shall be entitled to stop any construction in violation of these restrictions. Any member of the Architectural Review Board or its representatives shall have the right, during reasonable hours and after reasonable notice, to enter upon any property in the Community to inspect for the purpose of ascertaining whether or not these restrictive covenants have been or are being complied with. Such person or persons shall not be deemed guilty of trespass by reason of such entry. In addition to any other remedies available to the Architectural Review Board, in the event of noncompliance with this Section, the Architectural Review Board may record in the appropriate land records a notice of violation hereunder naming the violating Owner. PLANS AND SPECIFICATIONS ARE NOT APPROVED FOR ENGINEERING OR STRUCTURAL DESIGN OR QUALITY OF MATERIALS, AND BY APPROVING SUCH PLANS AND SPECIFICATIONS NEITHER THE ARCHITECTURAL REVIEW BOARD, THE MEMBERS THEREOF, THE ASSOCIATION, NOR THE DECLARANT ASSUMES LIABILITY OR RESPONSIBILITY THEREFOR, NOR FOR ANY DEFECT IN ANY STRUCTURE CONSTRUCTED FROM SUCH PLANS AND SPECIFICATIONS. NEITHER DECLARANT, THE ASSOCIATION, THE ARCHITECTURAL REVIEW BOARD, THE BOARD, NOR THE OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES, AND AGENTS OF ANY OF THEM SHALL BE LIABLE FOR DAMAGES TO ANYONE SUBMITTING PLANS AND SPECIFICATIONS FOR APPROVAL, OR TO ANY OWNER OF PROPERTY AFFECTED BY THESE RESTRICTIONS BY REASON OF MISTAKE IN JUDGMENT, NEGLIGENCE, OR NONFEASANCE ARISING OUT OF OR IN CONNECTION WITH THE APPROVAL OR DISAPPROVAL OR FAILURE TO APPROVE OR DISAPPROVE ANY SUCH PLANS OR SPECIFICATIONS. EVERY PERSON WHO SUBMITS PLANS OR SPECIFICATIONS AND EVERY OWNER AGREES THAT SUCH PERSON OR OWNER WILL NOT BRING ANY ACTION OR SUIT AGAINST DECLARANT, THE ASSOCIATION, THE ARCHITECTURAL REVIEW BOARD, THE BOARD, OR THE OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES, AND AGENTS OF ANY OF THEM TO RECOVER ANy SUCH DAMAGES AND HEREBY RELEASES, REMISES, QUITCLAIMS, AND COVENANTS NOT TO SUE FOR ALL CLAIMS, DEMANDS, AND CAUSES OF ACTION ARISING OUT OF OR IN CONNECTION WITH ANY JUDGMENT, NEGLIGENCE, OR NONFEASANCE AND HEREBY WAIVES THE PROVISIONS OF ANY LAW WHICH PROVIDES THAT A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS, DEMANDS, AND CAUSES OF ACTION NOT KNOWN AT THE TIME THE RELEASE IS GIVEN. The approval of the Architectural Review Board of any proposals or plans and specifications or drawings for any work -12- done or proposed, or in connection with any other matter requiring approval or consent of the Architectural Review Board, shall not be deemed to constitute a waiver of any right to withhold approval or consent as to any similar proposals, plans and specifications, or drawings, or matters whatever subsequently or additionally submitted for approval or consent. Notwithstanding anything to the contrary contained herein, the Architectural Review Board shall be authorized to grant individual variances from any of the provisions of this Declaration, the Bylaws, the architectural guidelines and any rule, regulation or use restriction promulgated pursuant thereto if it determines that waiver of application or enforcement of the provision in a particular case is dictated by unique circumstances, such as, but not limited to, topography, natural obstructions or hardship, or required by aesthetic or environmental considerations and would not be inconsistent with the overall scheme of development for the Community. No variance shall (a) be effective unless in writing, (b) be inconsistent with the overall scheme of development for the Community, or (c) estop the Architectural Review Board from denying a variance in other similar circumstances. For purposes of this provision, the inability to obtain approval of any governmental agency or the issuance of any permit, or the terms of any financing shall not be considered a hardship warranting a variance. 6.04 Siqns. No sign of any kind shall be erected by an Owner or Occupant within the Community without the prior written consent of the Declarant or the Architectural Review Board. Notwithstanding the foregoing, "For Sale" and "For Rent" signs and security signs consistent with the Community-Wide Standard and any signs required by legal proceedings may be erected upon any Lot. The provisions of this Section shall not apply to any Person holding a Mortgage who becomes the Owner of any Lot as purchaser at a judicial or foreclosure sale conducted with respect to a first Mortgage or as transferee pursuant to any proceeding in lieu thereof. 6.05 Vehicles. The term "vehicles," as used herein, shall include, without limitation, motor homes, boats, trailers, motorcycles, minibikes, scooters, go-carts, golf carts, trucks, campers, buses, vans, and automobiles. Unless and except to the extent that the Occupants of a Lot shall have more vehicles than the number of parking areas serving their Lot, all vehicles shall be parked within such parking areas. Where the Lot contains a garage, "parking areas" shall refer to the number of garage parking spaces. All single-family detached homes shall contain a garage; carports shall not be permitted. Garage doors should be kept closed at all times, except during times of ingress and egress from the garage. -13- No vehicle may be left upon any portion of the Community, except in a garage or other area designated by the Board, for a ~eriod longer than five (5) days if it is unlicensed or if it is an a condition such that it is incapable of being operated upon the public highways. After such five (5) day period, such vehicle shall be considered a nuisance and may be removed from the Community. Any towed vehicle, boat, recreational vehicle, motor home, or mobile home regularly stored in the Community or temporarily kept in the Community, except if kept in a garage or other area designated by the Board, for periods longer than twenty-four (24) hours each shall be considered a nuisance and may be removed from the Community. Trucks with mounted campers which are an Owner's or Occupant's primary means of transportation shall not be considered recreational vehicles, provided they are used on a regular basis for transportation and the camper is stored out of public view upon removal. 6.06 Parkinq. Vehicles shall be parked only in appropriate parking spaces or designated areas. All parking shall be subject to such rules and regulations as the Board may adopt. 6.07 Leasing. Lots may be leased for residential purposes. All leases shall have a minimum tezm of at least six (6) months. All leases shall require, without limitation, that the tenant acknowledge receipt of a copy of the Declaration, Bylaws, use restrictions, and rules and regulations of the Association. The lease shall also obligate the tenant to comply with the foregoing. 6.08 Occupants Bound. Ail provisions of the Declaration, Bylaws, and of any rules and regulations, use restrictions or design guidelines promulgated pursuant thereto which govern the conduct of Owners and which provide for sanctions against Owners shall also apply to all Occupants even though Occupants are not specifically mentioned. Fines may be levied against Owners or Occupants. If a fine is first levied against an Occupant and is not paid timely, the fine may then be levied against the Owner. 6.09 Animals and Pets. No animals, livestock, or poultry of any kind may be raised, bred, kept, or permitted on any Lot, with the exception of dogs, cats, or other usual and common household pets in reasonable number, as determined by the Board. No pets shall be kept, bred or maintained for any commercial purpose. 6.10 Nuisance. It shall be the responsibility of each Owner and Occupant to prevent the development of any unclean, unhealthy, unsightly, or unkempt condition on such Owner's Lot. No property within the Community shall be used, in whole or in part, for the storage of any property or thing that will cause such Lot to appear to be in an unclean or untidy condition or that will be obnoxious to the eye; nor shall any substance, -14- thing, or material be kept that will emit foul or obnoxious odors or that will cause any noise or other condition that will or might disturb the peace, quiet, safety, comfort, or serenity of the occupants of surrounding property. No noxious or offensive activity shall be carried on within the Community, nor shall anything be done tending to cause embarrassment, discomfort, annoyance, or nuisance to any Person using any property within the Community. There shall not be maintained any plants or animals or device or thing of any sort whose activities or existence in any way is noxious, dangerous, unsightly, unpleasant, or of a nature as may diminish or destroy the enjoyment of the Community. Without limiting the generality of the foregoing, no speaker, horn, whistle, siren, bell, amplifier or other sound device, except such devices as may be used exclusively for security purposes, shall be located, installed or maintained upon the exterior of any Lot. 6.11 Unsightly or Unkempt Conditions. The pursuit of hobbies or other activities, including specifically, without limiting the generality of the foregoing, the assembly and disassembly of motor vehicles and other mechanical devices, which might tend to cause disorderly, unsightly, or unkempt conditions, shall not be pursued or undertaken in any part of the Community. 6.12 Antennas. No exterior antennas of any kind shall be placed, allowed, or maintained upon any portion of the Community, including any Lot, without the prior written consent of the Declarant or the Architectural Review Board. No free standing antennas, visible from outside the Lot, shall be placed on any Lot including, without limitation, satellite dishes. Each Owner and Occupant acknowledges that this provision benefits all Owners and Occupants and each Owner and Occupant agrees to comply with this provision despite the fact that the erection of an outdoor antenna or similar device would be the most cost-effective way to transmit or receive the signals sought to be transmitted or received. 6.13 Tree Removal. No trees that are more than six (6) inches in diameter at a point twelve (12) inches above the ground shall be removed without the prior written consent of the Declarant or the Architectural Review Board. However, no ornamental or flowering trees, including, without limitation, dogwood trees, cottonwood trees, cherry trees or apple trees, regardless of diameter, shall be removed without the prior written consent of the Architectural Review Board. 6.14 Drainage. Catch basins, retention ponds, detention ponds and drainage areas are for the purpose of controlling the natural flow of water only. No obstructions or debris shall be placed in these areas. No Owner or Occupant may obstruct or rechannel the drainage flows after location and installation of -15- catch basins, retention ponds, detention ponds, drainage swales, storm sewers, or storm drains. 6.15 Sight Distance at Intersections. Ail property located at street intersections shall be landscaped so as to permit safe sight across the street corners. No fence, wall, hedge, or shrub planting shall be placed or per~tted to remain where it would create a traffic or sight problem. 6.16 Garbage Cans, Woodpiles, Etc. Ail garbage cans, woodpiles, swimming pool pumps, filters and related equipment, air conditioning compressors and other similar items shall be located or screened so as to be concealed from view of neighboring streets and property. All rubbish, trash, and garbage shall be regularly removed and shall not be allowed to accumulate. Trash, garbage, debris, or other waste matter of any kind may not be burned within the Community. 6.17 Subdivision of Lot. No Lot shall be subdivided or its boundary lines changed except with the prior written approval of the Declarant. Declarant, however, hereby expressly reserves the right to replat any Lot(s) owned by Declarant. Any such division, boundary line change, or replatting shall not be in violation of the applicable subdivision and zoning regulations. 6.18 Guns. The use of firearms in the Community is prohibited. The term "firearms" includes, without limitation, "B-B" guns, pellet guns, and small fireazms of all types. 6.19 Fences. No fence or fencing type barrier of any kind shall be placed, erected, allowed, or maintained upon any Lot without the prior written consent of the Architectural Review Board. Under no circumstances shall any fence be placed, erected, allowed, or maintained upon any Lot closer to the street than the front of the residence located on the Lot. 6.20 Utility Lines. Except as may be permitted by the Declarant or the Architectural Review Board, no overhead utility lines, including lines for cable television, shall be pezmitted within the Community, except for temporary lines as required during construction and'lines installed by or at the request of Declarant. 6.21 Air-Conditioning Unit~. No window air conditioning units may be installed. 6.22 Lighting. Exterior lighting on any Lot visible from the street shall not be permitted, except for: (a) approved lighting as originally installed on a Lot; (b) one (1) decorative post light; (c) street lights in conformity with an established street lighting program for the Community; (d) seasonal -16- decorative lights; (e) front house illumination of model homes; or (f) other lighting approved by the Architectural Review Board. 6.23 Artificial Veqetation, Exterior Sculpture, and Similar Items. No artificial vegetation shall be pezu~tted on the exterior of any property. Exterior sculpture, fountains, flags, and similar items must be approved by the Architectural Review Board. 6.24 Enerqy Conservation Equipment. No solar energy collector panels or attendant hardware or other energy conservation equipment shall be constructed or installed unless as an integral and harmonious part of the architectural design of a structure, as detezmined in the sole discretion of the Architectural Review Board. 6.25 Swimming Pools. No swimming pool shall be constructed, erected or maintained upon any Lot without the prior written consent of the Architectural Review Board and in no event shall any above-ground swimming pool be permitted. 6.26 Gardens, Play Equipment and Pools. No vegetable garden, hammock, statuary, play equipment (including, without limitation, basketball goals), or pool to be erected on any Lot may be located other than between the rear dwelling line and the rear lot line, without the prior written consent of the Architectural Review Board. In addition, such items shall not be located on a Lot where the view of the golf course from adjacent dwellings will be restricted. 6.27 Mailboxes. Ail mailboxes serving Lots shall be approved by the Architectural Review Board. Identical replacement mailboxes may be installed without further approval; but no modification to or change in mailboxes may be made without the approval in writing of the Architectural Review Board. 6.28 Clotheslines. No exterior clotheslines of any type shall be permitted upon any Lot. 6.29 Exterior Security Devices. No exterior security devices, including, without limitation, window bars, shall be permitted. Signs placed on the Lot or the exterior of the residence stating that such residence is protected by a security system shall not be deemed to constitute an exterior security device. Article vii Insurance and Casualty Losses 7.01 Insurance on Common Property. The Board of Directors or the duly authorized agent of the Association shall have the -17- authority to and shall obtain casualty insurance for all insurable improvements, whether or not located on the Common Property, which the Association is obligated to maintain. This insurance shall provide, at a minimum, fire and extended coverage, including vandalism and malicious mischief, and shall be in an amount sufficient to cover the full replacement cost of any repair or reconstruction in the event of damage or destruction from any such hazard. Alternatively, the Board may purchase "all-risk" coverage in like amounts. The Board shall obtain a public liability policy applicable to the Common Property covering the Association and its members for all damage or injury caused by the negligence of the Association or any of its members or agents, and, if reasonably available, directors' and officers' liability insurance. The public liability policy shall have a combined single limit of at least One Million ($1,000,000.00) Dollars. The Board is hereby authorized to contract with or otherwise arrange to obtain the insurance coverage required hereunder through the Declarant and to reimburse Declarant for the cost thereof, and Declarant shall be authorized, but not obligated, to purchase such insurance coverage for the benefit of the Association and the Owners upon Declarant and the Association agreeing upon the terms and conditions applicable to reimbursement by the Association for costs incurred by Declarant in obtaining such coverage. Notwithstanding anything contained in this Declaration to the contrary, the Board shall not be required to comply with the provisions of this Article if the Board has contracted for or otherwise arranged to obtain the required insurance coverage through the Declarant. Premiums for all insurance shall be common expenses of the Association. The policies may contain a reasonable deductible, and the amount thereof shall not be subtracted from the face amount of the policy in determining whether the insurance at least equals the full replacement cost. All such insurance coverage obtained by the Board of Directors shall be written in the name of the Association, as trustee for the respective benefitted parties, as further identified in subparagraph (b), below. Such insurance shall be governed by the provisions hereinafter set forth: (a) Ail policies shall be written with a company authorized to do business in Georgia. (b) Exclusive authority to adjust losses under policies obtained by the Association shall be vested in the Association's Board of Directors; provided, however, no Mortgagee having an interest in such losses may be prohibited from participating in the settlement negotiations, if any, related thereto. -18- (c) In no event shall the insurance coverage obtained and maintained by the Association hereunder be brought into contribution with insurance purchased by individual Owners, Occupants, or their Mortgagees, and the insurance carried by the Association shall be primary. (d) All casualty insurance policies shall have an inflation guard endorsement and an agreed amount endorsement if these are reasonably available and all insurance policies shall be reviewed annually by one or more qualified persons, at least one of whom must be in the real estate industry and familiar with construction in the county where the Community is located. (e) The Association's Board of Directors shall be required to make every reasonable effort to secure insurance policies that will provide for the following: (i) a waiver of subrogation by the insurer as to any claims against the Board of Directors, the manager of the Association, if any, the Owners and their respective tenants, servants, agents, and guests; (ii) a waiver by the insurer of its rights to repair and reconstruct instead of paying cash; (iii) that no policy may be canceled, invalidated, or suspended on account of any one or more individual Owners; (iv) that no policy may be canceled, subjected to nonrenewal, invalidated, or suspended on account of any defect or the conduct of any director, officer, or employee of the Association or its duly authorized manager without prior demand in writing delivered to the Association to cure the defect or to cease the conduct and the allowance of a reasonable time thereafter within which a cure may be effected by the Association, its manager, any Owner or Mortgagee; (v) that any "other insurance" clause in any policy exclude individual Owners' policies from consideration; and (vi) that no policy may be canceled, subjected to nonrenewal or substantially modified without at least thirty (30) days' prior written notice to the Association. In addition to the other insurance required by this Section, the Board shall obtain worker's compensation insurance, if and to the extent necessary to satisfy the requirements of applicable laws, and a fidelity bond or bonds on directors, officers, employees, and other persons handling or responsible for the Association's funds, if reasonably available. If obtained, the amount of fidelity coverage shall be determined in the directors' best business judgment, and, if available, shall at least equal -19- three (3) months' assessments plus reserves on hand. Bonds shall contain a waiver of all defenses based upon the exclusion of persons serving without compensation and may not be canceled, subjected to nonrenewal or substantially modified without at least thirty (30) days' prior written notice to the Association. The Association shall also obtain construction code endorsements, steam boiler coverage, and flood insurance, if and to the extent necessary to satisfy the requirements of the Federal Home Loan Mortgage Corporation, the Federal National Mortgage Association, the U.S. Department of Veterans Affairs, or the U.S. Department of Housing and Urban Development. 7.02 Individual Insurance. By virtue of taking title to a Lot subject to the terms of this Declaration, each Owner acknowledges that the Association has no obligation to provide any insurance for any portion of individual Lots, and each Owner covenants and agrees with all other Owners and with the Association that each Owner shall carry blanket all-risk casualty insurance on the Lot and all structures constructed thereon and a liability policy covering damage or injury occurring on a Lot. The casualty insurance shall cover loss or damage by fire and other hazards commonly insured under an "all-risk" policy, if reasonably available, including vandalism and malicious mischief, and shall be in an amount sufficient to cover the full replacement cost of any repair or reconstruction in the event of damage or destruction from any such hazard. If all-risk coverage is not reasonably available, Owners shall obtain, at a minimum, fire and extended coverage. The policies required hereunder shall be in effect at all times. Authority to adjust losses under policies obtained by an Owner shall be vested in the Owner. The Association shall have the right, but not the obligation, at the expense of the Owner, to acquire the insurance required to be maintained by the Owner if the Owner fails to provide a valid policy to the Association with a prepaid receipt within ten (10) days after receipt by the Owner of a written request from the Association. If the Association does acquire insurance on behalf of any Owner, the cost thereof shall be assessed against the Owner and the Lot as a specific assessment. 7.03 Damaqe and Destruction -- Insured by Association. (a) In General. Immediately after damage or destruction by fire or other casualty to all or any portion of any improvement covered by insurance written in the name of the Association, the Board of Directors or its duly authorized agent shall proceed with the filing and adjustment of all claims arising under such insurance and obtain reliable and detailed estimates of the cost of repair or reconstruction of the damaged or destroyed property. Repair or reconstruction, as used in this Section, means repairing or restoring the property to substantially the same condition and location that existed prior to the fire or other -20- casualty, allowing for any changes or improvements necessitated by changes in applicable building codes. (b) Repair and Reconstruction. Any damage or destruction to property covered by insurance written in the name of the Association shall be repaired or reconstructed unless, within sixty (60) days after the casualty, a proposal not to repair or reconstruct such property is approved by at least seventy-five percent (75%) of the Total Association Vote and Declarant, so long as the Declarant owns any property for development and/or sale in the municipality of Peachtree City, Georgia, consents to such proposal. If for any reason either the amount of the insurance proceeds to be paid as a result of such damage or destruction, or reliable and detailed estimates of the cost of repair or reconstruction, or both, are not made available to the Association within such period, then the period shall be extended until such infozmation shall be made available; provided, however, such extension shall not exceed sixty (60) days. No Mortgagee shall have the right to participate in the determination of whether damage or destruction shall be repaired or reconstructed. If the damage or destruction for which the insurance proceeds are paid is to be repaired or reconstructed and such proceeds are not sufficient to defray the cost thereof, the Board of Directors shall, without the necessity of a vote of the Association's members, levy a special assessment against the Owner of each Lot. Additional assessments may be made in like manner, as necessary, at any time during or following the completion of any repair or reconstruction. If the funds available from insurance exceed the costs of repair or reconstruction or if the improvements are not repaired or reconstructed, such excess shall be deposited to the benefit of the Association. In the event that it should be determined by the Association and Declarant in the manner described above that the damage or destruction shall not be repaired or reconstructed and no alternative improvements are authorized, the property shall be restored to its natural state and maintained as an undeveloped portion of the Community by the Association in a neat and attractive condition. 7.04 Damaqe and Destruction -- Insured by Owners. The damage or destruction by fire or other casualty to all or any portion of any improvement on a Lot shall be repaired by the Owner thereof within seventy-five (75) days after such damage or destruction or, where repairs cannot be completed within seventy-five (75) days, they shall be commenced within such period and shall be completed within a reasonable time thereafter. Alternatively, the Owner may elect to demolish all -21- improvements on the Lot and remove all debris therefrom within seventy-five (75) days after such damage or destruction. 7.05 Insurance Deductible. The deductible for any casualty insurance policy carried by the Association shall, in the event of damage or destruction, be allocated among the Persons who are responsible hereunder, or under any declaration or contract requiring the Association to obtain such insurance, for maintenance of the damaged or destroyed property. Article VIII Condemnation In the event of a taking by eminent domain of any portion of the Common Property on which improvements have been constructed, then, unless within sixty (60) days after such taking, an alternative plan is approved by at least seventy-five percent (75%) of the Total Association Vote and Declarant consents to such plan, so long as the Declarant owns any property for development and/or sale in the municipality of Peachtree City, Georgia, the Association shall restore or replace such improvements so taken on the remaining land included in the Common Property to the extent lands are available therefor. The provisions of Section 7.03, above, applicable to Common Property improvements damage, shall govern replacement or restoration and the actions to be taken in the event that the improvements are not restored or replaced. Article IX Annexation of Additional Property 9.01 Unilateral Annexation By Declarant. (a) As the owner thereof or, if not the owner, with the consent of the owner thereof, Declarant shall have the unilateral right, privilege, and option from time to time at any time until seven (7) years after the recording of this Declaration to subject all or any portion of the real property described in Exhibit "B" attached hereto and by this reference incorporated herein, to the provisions of this Declaration and the jurisdiction of the Association by filing for record in the county in which the property to be annexed is located a Supplementary Declaration describing the property being subjected. Any such annexation shall be effective upon the filing for record of such Supplementary Declaration unless a later effective date is provided therein. As long as covenants applicable to the real property previously subjected to this Declaration are not changed and as long as rights of existing Owners are not adversely affected, the Declarant may unilaterally -22- amend this Declaration to reflect the different character of any such annexed real property. (b) The rights reserved unto Declarant to subject additional land to the Declaration shall not impose any obligation upon Declarant to subject any of such additional land to this Declaration or to the jurisdiction of the Association. If such additional land is not subjected to this Declaration, Declarant's reserved rights shall not impose any obligation on Declarant to impose any covenants and restrictions similar to those contained herein upon such additional land nor shall such rights in any manner limit or restrict the use to which such additional land may be put by Declarant or any subsequent owner thereof, whether such uses are consistent with the covenants and restrictions imposed hereby or not. 9.02 Other Annexation. Upon the written consent of (a) the owner(s) thereof, (b) the Declarant (so long as the Declarant owns any property for development and/or sale in the municipality of Peachtree City, Georgia) and (c) the Owners of at least two-thirds (2/3) of the Lots, the Association may annex real property to the provisions of this Declaration and the jurisdiction of the Association by filing for record in the county in which the property to be annexed is located a Supplementary Declaration describing the property being annexed. Any such Supplementary Declaration shall be signed by the owner of the property being annexed and the President of the Association whose signature shall be attested by the Secretary of the Association, and any such annexation shall be effective only upon the filing for record of such Supplementary Declaration, unless a later effective date is provided therein. Article X Mortgagee Provisions The following provisions are for the benefit of holders of first Mortgages on Lots in the Community. The provisions of this Article apply to both this Declaration and to the Bylaws, notwithstanding any other provisions contained therein. 10.01 Notices of Action. An institutional holder, insurer, or guarantor of a first Mortgage, who provides a written request to the Association (such request to state the name and address of such holder, insurer, or guarantor and the Lot number, therefore becoming an "eligible holder"), will be entitled to timely written notice of: (a) any condemnation loss or any casualty loss which affects a material portion of the Community or which affects any Lot on which there is a first Mortgage held, insured, or guaranteed by such eligible holder; -23- (b) any delinquency in the payment of assessments or charges owed by an Owner of a Lot subject to the Mortgage of such eligible holder, where such delinquency has continued for a period of sixty (60) days; provided, however, notwithstanding this provision, any holder of a first Mortgage, upon request, is entitled to written notice from the Association of any default in the performance by the Owner of the encumbered Lot of any obligation under the Declaration or Bylaws which is not cured within sixty (60) days; (c) any lapse, cancellation, or material modification of any insurance policy maintained by the Association. 10.02 No Priority. No provision of this Declaration or the Bylaws gives any Owner or other party priority over any rights of the first Mortgagee of any Lot in the case of distribution to such Owner of insurance proceeds or condemnation awards for losses to or a taking of the Common Property. 10.03 Notice to Association. Upon request, each Lot Owner shall be obligated to furnish to the Association the name and address of the holder of any Mortgage encumbering such Owner's Lot. 10.04 VA/HUD Approval. As long as the Declarant has the right to appoint and remove the directors of the Association and so long as the project is approved by the U.S. Department of Housing and Urban Development ("HUD") for insuring or the U.S. Department of Veterans Affairs ("VA") for guaranteeing any Mortgage in the Community the following actions shall require the prior approval of the VA and/or HUD as applicable: annexation of additional property to the Community, except for annexation by Declarant in accordance with Section 9.01 hereof pursuant to a plan of annexation previously approved by the VA and/or HUD, as applicable; dedication of Common Property to any public entity; mergers and consolidations; dissolution of the Association; and material amendment of the Declaration, Bylaws or Articles of Incorporation. 10.05 Amendments by Board. Should the Federal National Mortgage Association, the Federal Home Loan Mortgage Corporation, HUD or VA subsequently delete any of their respective requirements which necessitate the provisions of this Article or make any such requirements less stringent, the Board, with the consent of the Declarant (so long as the Declarant owns any property for development and/or sale in the municipality of Peachtree City, Georgia) but without the approval of any of the other Owners, may cause an amendment to this Article to be recorded to reflect such changes. -24- Article XI Easements 11.01 Easements for Encroachment and Overhang. There shall be reciprocal appurtenant easements for encroachment and overhang as between each Lot and such portion of the Common Property adjacent thereto or as between adjacent Lots due to the unintentional placement or settling or shifting of the improvements constructed, reconstructed, or altered thereon (in accordance with the tezms of this Declaration) to a distance of not more than five (5) feet, as measured from any point on the common boundary between each Lot and the adjacent portion of the Common Property or as between adjacent Lots, as the case may be, along a line perpendicular to such boundary at such point; provided, however, in no event shall an easement for encroachment exist if such encroachment occurred due to willful conduct on the part of an Owner, Occupant, or the Association. 11.02 Easements for Use and Enjoyment. (a) Every Owner of a Lot shall have a right and easement of ingress and egress, use and enjoyment in and to the Common Property which shall be appurtenant to and shall pass with the title to each Lot, subject to the following provisions: (i) the right of the Association to charge reasonable admission and other fees for the use of any portion of the Common Property, to limit the number of guests of Lot Owners and Occupants who may use the Common Property, and to provide for the exclusive use and enjoyment of specific portions thereof at certain designated times by an Owner, an Owner's family, tenants, guests, and invitees; (ii) the right of the Association to suspend the voting rights of a Lot Owner and the right of an Owner to use the Community recreational facilities, if any, for any period during which any past due assessment against any Lot of the Owner remains unpaid; and, for a reasonable period of time for an infraction of the Declaration, Bylaws, or rules and regulations; (iii) the right of the Association to borrow money for the purpose of improving the Common Property, or any portion thereof, or for construction, repairing or improving any facilities located or to be located thereon, and upon the affirmative vote, of the Owners of at least two-thirds (2/3) of the Lots (other than Declarant) and the consent of Declarant (so long as the Declarant owns any property for development and/or sale in the municipality of Peachtree City, Georgia), to give as security for the payment of any such loan a Mortgage conveying all or any portion of the Common Property; provided, however, the lien and encumbrance of any such Mortgage given by the Association shall be subject and subordinate to any rights, interests, options, -25- easements and privileges herein reserved or established for the benefit of Declarant, or any Owner, or the holder of any Mortgage, irrespective of when executed, given by Declarant or any Owner encumbering any Lot or other property located within the Community (Regardless of any contrary provision in this Declaration or in any such Mortgage given by the Association, the exercise of any rights by the holder of such Mortgage in the event of a default thereunder shall not cancel or te~nate any rights, easements or privileges herein reserved or established for the benefit of Declarant, or any Owner, or the holder of any Mortgage, irrespective of when executed, given by Declarant or any Lot Owner encumbering any Lot or other property located within the Community.); (iv) the right of the Association to dedicate or grant licenses, permits or easements over, under, and through the Common Property to governmental entities for public purposes; and (v) the right of the Association to dedicate or transfer all or any portion of the Common Property subject to such conditions as may be agreed to by the members of the Association. No such dedication or transfer shall be effective unless an instrument agreeing to such dedication or transfer has been approved by the affirmative vote of Owners of at least two-thirds (2/3) of the Lots (other than Declarant) and the Declarant (so long as the Declarant owns any property for development and/or sale in the municipality of Peachtree City, Georgia). (b) Any Lot Owner may delegate such Owner's right of use and enjoyment in and to the Common Property and facilities located thereon to the members of such Owner's family and to such Owner's tenants and guests and shall be deemed to have made a delegation of all such rights to the Occupants of such Owner's Lot. 11.03 Easements for Utilities. There is hereby reserved to the Declarant, so long as the Declarant owns any property for development and/or sale in the municipality of Peachtree City, Georgia, a blanket easement upon, across, above and under all property within the Community for access, ingress, egress, installation, alteration, repairing, replacing, and maintaining all utilities serving the Community or any portion thereof, including, but not limited to, gas, water, storm water drainage, sanitary sewer, telephone and electricity and any other service such as, but not limited to, a master television antenna system, cable television system, or security system which the Declarant decides to have installed to serve the Community. The Declarant, or its designee, shall have the right to alter drainage and water flow, and/or install, repair, replace, and maintain such wires, conduits, cables and other equipment related to the providing of any such utility or service. Should any party furnishing any such utility or service request a specific license or easement by -26- separate recordable document, the Declarant shall have the right to grant such easement. Rights exercised pursuant to such reserved easement shall be exercised with a minimum of interference to the quiet enjoyment of affected property, reasonable steps shall be taken to protect such property, and damage shall be repaired by the Person causing the damage at its sole expense. 11.04 Easement for Entry. In addition to the right of the Board to exercise self-help as provided in Section 13.02, the Board shall have the right, but shall not be obligated, to enter upon any property within the Community for emergency, security, and safety reasons, which right may be exercised by the manager, and all policemen, firemen, ambulance personnel, and similar emergency personnel in the perfo£mance of their respective duties. Except in an emergency situation, entry shall only be during reasonable hours and after notice to the Owner, and the entering party shall be responsible for any damage caused. This right of entry shall include the right of the Board to enter to cure any condition which may increase the possibility of a fire, slope erosion, or other hazard in the event an Owner or Occupant fails or refuses to cure the condition upon request by the Board. 11.05 Easement for Maintenance. Declarant hereby expressly reserves a perpetual easement for the benefit of the Association across such portions of the Community, determined in the sole discretion of the Association, as are necessary to allow for the maintenance required under Section 5.01. Such maintenance shall be performed with a minimum of interference to the quiet enjoyment to Lots, reasonable steps shall be taken to protect such property, and damage shall be repaired by the Person causing the damage at its sole expense. 11.06 Construction and Sale Period Easement. Notwithstanding any provisions contained in this Declaration, the Bylaws, Articles of Incorporation, use restrictions, rules and regulations, architectural guidelines, and any amendments thereto, Declarant reserves an easement, so long as the Declarant owns any property for development and/or sale in the municipality of Peachtree City, Georgia, across the Community for Declarant and any builder or developer approved by Declarant to maintain and carry on, upon such portion of the Community as Declarant may reasonably deem necessary, such facilities and activities as in the sole opinion of Declarant may be required, convenient, or incidental to Declarant's and such builder's or developer's development, construction, and sales activities related to property described on Exhibit "A" and Exhibit "B" to this Declaration, including, but without limitation: the right of access, ingress and egress for vehicular and pedestrian traffic and construction activities over, under, on or in the Community, including, without limitation, any Lot; the right to tie into any portion of the Community with driveways, paths, parking areas and -27- walkways; the right to tie into and/or otherwise connect and use (without a tap-on or any other fee for so doing), replace, relocate, maintain and repair any device which provides utility or similar services including, without limitation, electrical, telephone, natural gas, water, sewer and drainage lines and facilities constructed or installed in, on, under and/or over the Community; the right to grant easements over, under, in or on the Community, including without limitation the Lots, for the benefit of neighboring properties for the purpose of tying into and/or otherwise connecting and using sewer and drainage lines and facilities constructed or installed in, on, under and/or over the Community; the right to construct recreational facilities on Common Property; the right to carry on sales and promotional activities in the Community; and the right to construct and operate business offices, signs, construction trailers, model residences, and sales offices. Declarant and any such builder or developer may use residences, offices, or other buildings owned or leased by Declarant or such builder or developer as model residences and sales offices and may also use Community recreational facilities as a sales office without charge. Rights exercised pursuant to such reserved easement shall be exercised with a minimum of interference to the quiet enjoyment of affected property, reasonable steps shall be taken to protect such property, and damage shall be repaired by the Person causing the damage at its sole expense. This Section shall not be amended without the Declarant's express written consent until the Declarant's rights hereunder have terminated as hereinabove provided. 11.08 Easements for Golf Course. (a) There is hereby reserved for the benefit of the golf course property an easement across each Lot and the Common Property for golfers at reasonable times and in a reasonable manner to come upon the Common Property and the exterior portions of a Lot to retrieve errant golf balls; provided, however, if any Lot is fenced or walled, the golfer shall seek the pe£mission of the Owner before entry. The existence of this easement shall not relieve golfers of liability for damage caused by errant golf balls. Under no circumstances shall any of the following Persons be held liable for any damage or injury resulting from errant golf balls or the exercise of this easement: the Declarant; the Association or its members (in their capacity as such); the Architectural Review Board; the owner of the golf course property; or any builder, developer or contractor (in their capacities as such). (b) The owner of the golf course, its respective agents, successors and assigns, shall at all times have a right and non-exclusive easement of access and use over those portions of the Common Property reasonably necessary to the operation, maintenance, repair and replacement of the golf course. -28- (c) The Lots immediately adjacent to the golf course are hereby burdened with a non-exclusive easement in favor of the golf course for overspray of water from any irrigation system serving the golf course. Under no circumstances shall the Association or the owner of the golf course be held liable for any damage or injury resulting from such overspray or the exercise of this easement. Article XII Certain Recreational Facilities Which Are Not Common Property 12.01 General. Certain recreational facilities may be, but are not required to be, constructed by Declarant or another Person adjacent to the Community as a golf course for the use of the members of the Association and others. The golf course shall not constitute Common Property. The members of the Association shall have no ownership interest, proprietary interest, beneficial interest, or other vested interest in the golf course and shall have no right to enter or to use the golf course by virtue of being a member of the Association. 12.02 Ownership and Operation of Golf Course. Ail Persons, including all Owners, are hereby advised that no representations or warranties have been or are made by the Declarant or any other Person with regard to the continuing existence, ownership or operation of the golf course. Further, the ownership and/or operation of the golf course, if any, may change at any time and from time to time by virtue of, but without limitation, (a) the sale to or assumption of operations of the golf course by an independent entity or entities; (b) the creation or conversion of the ownership and/or operating structure of the golf course to an "equity" club or similar arrangement whereby the golf course or the rights to operate it are transferred to an entity which is owned or controlled by its members; or (c) the transfer of ownership or control of the golf course to one or more affiliates, shareholders, employees, or independent contractors of the Declarant. No consent of the Association, the Architectural Review Board, or any Owner shall be required to effectuate such transfer or conversion. 12.03 Riqht to Use. Neither membership in the Association nor ownership or occupancy of a Lot shall confer any ownership interest in or right to use the golf course. Rights to use the golf course will be granted only to such Persons, and on such tezms and conditions, as may be determined from time to time by the owner of the golf course. This Declaration does not restrict the right of the owner of the golf course to amend or waive the terms and conditions of use of the golf course, including, without limitation, eligibility for and duration of use rights, categories of use and extent of use privileges, and number of -29- users, to reserve use rights or to te£minate use rights altogether. 12.04 View Impairment. Neither the Declarant, the Association nor the owner or operator of the golf course guarantees or represents that any view over and across the golf course from adjacent Lots will be preserved without impairment. The owner of the golf course shall have no obligation to prune or thin trees or other landscaping, and shall have the right, in its sole and absolute discretion, to add trees and other landscaping to the golf course from time to time. In addition, the owner of the golf course may, in its sole and absolute discretion, change the location, configuration, size and elevation of the tees, bunkers, fairways and greens on the golf course from time to time. Any such additions or changes to the golf course may diminish or obstruct any view from the lots and any express or implied easements for view purposes or for the passage of light and air are hereby expressly disclaimed. 12.05 Limitations on Amendments. In recognition of the fact that the provisions of this Article are for the benefit of the owner of the golf course, no amendment to this Article, and no amendment in derogation of any rights reserved or granted to the owner of the golf course by other provisions of this Declaration, may be made without the written approval of the owner of the golf course. The foregoing shall not apply, however, to amendments made unilaterally by the Declarant. 12.06 Jurisdiction and CooDeration. It is intended that the Association, the Owners and the owner of the golf course shall cooperate to the maximum extent possible in the operation of the Community and the golf course. Each shall reasonably assist the other in upholding the Community-Wide Standard. The Association shall have no power to promulgate rules and regulations affecting activities on or use of the golf course. Without limiting the generality of the foregoing, the Association and the Owners shall have no power under this Declaration to restrict authorized users of the golf course from access and use of all roadways located within the Community to park their vehicles on the streets within the Community at reasonable times before, during and after golf tournaments and other similar functions held within the golf course. Article XIII General Provisions 13.01 Enforcement. Each Owner and Occupant shall comply strictly with the Bylaws, the rules and regulations, the use restrictions, as they may be lawfully amended or modified from time to time, and with the covenants, conditions, and restrictions set forth in this Declaration and in the deed to -30- such Owner's Lot, if any. The Board of Directors may impose fines or other sanctions, which shall be collected as provided herein for the collection of assessments. Failure to comply with this Declaration, the Bylaws or the rules and regulations shall be grounds for an action to recover sums due for damages or injunctive relief, or both, maintainable by the Association, or, in a proper case, by the Declarant or an aggrieved Owner. Failure by the Declarant, the Association or any Owner to enforce any of the foregoing shall in no event be deemed a waiver of the right to do so thereafter. The Association shall have the right to record in the appropriate land records a notice of violation of the Declaration, Bylaws, rules and regulations, use restrictions, or design guidelines and to assess the cost of recording and removing such notice against the Owner who is responsible (or whose Occupants are responsible) for violating the foregoing. 13.02 Self-Help. In addition to any other remedies provided for herein, the Association, the Declarant, the Architectural Review Board or their respective duly authorized agents shall have the power to enter upon any Lot or any other portion of the Community to abate or remove, using such force as may be reasonably necessary, any structure, thing or condition which violates this Declaration, the Bylaws, the rules and regulations, or the use restrictions. Unless an emergency situation exists, the violating Lot Owner shall be given ten (10) days' written notice of the intent to exercise self-help. Notwithstanding the foregoing, vehicles may be towed after giving any notice required by law. All costs of self-help, including, without limitation, reasonable attorney's fees actually incurred, shall be assessed against the violating Owner as a specific assessment. 13.03 Duration. The covenants and restrictions of this Declaration shall run with and bind the Community, and shall inure to the benefit of and shall be enforceable by the Association or any Owner, their respective legal representatives, heirs, successors, and assigns, perpetually to the extent provided by law; provided, however, so long as, and to the extent that, Georgia law limits the period during which covenants restricting land to certain uses may run, any provisions of this Declaration affected thereby shall run with and bind the land so long as permitted by such law, after which time, any such provision(s) shall be (a) automatically extended (to the extent allowed by applicable law) for successive periods of ten (10) years, unless a written instrument reflecting disapproval signed by the then Owners of at least two-thirds (2/3) of the Lots and the Declarant (so long as the Declarant owns any property for development and/or sale in the municipality of Peachtree City, Georgia) has been recorded within the year immediately preceding the beginning of a ten (10) year renewal period agreeing to change such provisions, in whole or in part, or to tezminate the -31- same, in which case this Declaration shall be modified or terminated to the extent specified therein; or (b) extended as otherwise provided by law. Every purchaser or grantee of any interest (including, without limitation, a security interest) in any real property subject to this Declaration, by acceptance of a deed or other conveyance therefor, thereby agrees that such provisions of this Declaration may be extended and renewed as provided in this Section. 13.04 Amendment. This Declaration may be amended unilaterally at any time and from time to time by Declarant (a) if such amendment is necessary to bring any provision hereof into compliance with any applicable governmental statute, rule, or regulation or judicial determination which shall be in conflict therewith; (b) if such amendment is necessary to enable any title insurance company to issue title insurance coverage with respect to the Lots subject to this Declaration; (c) if such amendment is required by an institutional or governmental lender or purchaser of mortgage loans, including, for example, the Federal National Mortgage Association or Federal Home Loan Mortgage Corporation, to enable such lender or purchaser to make or purchase Mortgage loans on the Lots subject to this Declaration; or (d) if such amendment is necessary to enable any governmental agency or private insurance company to insure or guarantee Mortgage loans on the Lots subject to this Declaration; provided, however, any such amendment shall not adversely affect the title to any Lot unless the Owner of such Lot consents thereto in writing. Further, so long as the Declarant owns any property for development and/or sale in the municipality of Peachtree City, Georgia, Declarant may unilaterally amend this Declaration for any other purpose; provided, however, any such amendment shall not materially adversely affect the substantive rights of any Lot Owners hereunder, nor shall it adversely affect title to any Lot without the consent of the affected Lot Owner. In addition to the above, this Declaration may be amended upon the affirmative vote or written consent of at least two-thirds (2/3) of the Lot Owners and the consent of Declarant (so long as the Declarant owns any property for development and/or sale in the municipality of Peachtree City, Georgia). Amendments to this Declaration shall become effective upon recordation, unless a later effective date is specified therein. 13.05 Partition. The Common Property shall remain undivided, and no Owner nor any other Person shall bring any action for partition or division of the whole or any part thereof without the written consent of all Owners of all portions of the property located within the Community and without the written consent of all holders of all Mortgages encumbering any portion of the property, including, but not necessarily limited to, the Lots located within the Community. -32- 13.06 Gender and Grammar. The singular, wherever used herein, shall be construed to mean the plural, when applicable, and the use of the masculine or feminine pronoun shall include the neuter, masculine and feminine. 13.07 Severabilit¥. Whenever possible, each provision of this Declaration shall be interpreted in such manner as to be effective and valid, but if the application of any provision of this Declaration to any person or to any property shall be prohibited or held invalid, such prohibition or invalidity shall not affect any other provision or the application of any provision which can be given effect without the invalid provision or application, and, to this end, the provisions of this Declaration are declared to be severable. 13.08 Captions. The captions of each Article and Section hereof, as to the contents of each Article and Section, are inserted only for convenience and are in no way to be construed as defining, limiting, extending, or otherwise modifying or adding to the particular Article or Section to which they refer. 13.09 Preparer. This Declaration was prepared by David N. Dorough, Jr., Dodson, Feldman & Dorough, 6000 Lake Forrest Drive, N.W., Suite 300, Atlanta, Georgia 30328. 13.10 Perpetuities. If any of the covenants, conditions, restrictions, or other provisions of this Declaration shall be unlawful, void, or voidable for violation of the rule against perpetuities, then such provisions shall continue only until twenty-one (21) years after the death of the last survivor of the now living descendants of Elizabeth II, Queen of England. 13.11 Indemnification. To the fullest extent allowed by applicable Georgia law, the Association shall indemnify every officer, director, and committee member against any and all expenses, including, without limitation, attorney's fees, imposed upon or reasonably incurred by any officer, director or committee member in connection with any action, suit, or other proceeding (including settlement of any suit or proceeding, if approved by the then Board of Directors) to which such officer, director or committee member may be a party by reason of being or having been an officer, director or committee member. The officers, directors and committee members shall not be liable for any mistake of judgment, negligent or otherwise, except for their own individual willful misfeasance, malfeasance, misconduct, or bad faith. The officers, directors and committee members shall have no personal liability with respect to any contract or other commitment made by them, in good faith, on behalf of the Association, and the Association shall indemnify and forever hold each such officer, director and committee member free and harmless against any and all liability to others on account of any such contract or commitment. Any right to indemnification -33- provided for herein shall not be exclusive of any other rights to which any officer, director or committee member, or former officer, director or committee member, may be entitled. The Association shall maintain adequate general liability and officers' and directors' liability insurance to fund this obligation, if such coverage is reasonably available. 13.12 InsDection of Books and Records. This Declaration, the Bylaws, copies of rules and use restrictions, membership register, books of account, and minutes of meetings of the members of the Board and of committees shall be made available for inspection and copying by any member of the Association or by the duly appointed representative of any member and by holders, insurers, or guarantors of any first Mortgage at any reasonable time and for a purpose reasonably related to such Person's interest as a member or holder, ~nsurer, or guarantor of a first Mortgage at the office of the Association or at such other reasonable place as the Board shall prescribe. The Board shall establish reasonable rules with respect to (i) notice to be given to the custodian of the records; (ii) hours and days of the week when such an inspection may be made; and (iii) payment of the cost of reproducing copies of documents. Every director shall have the absolute right at any reasonable time to inspect all books, records, and documents of the Association and the physical properties owned or controlled by the Association. The right of inspection by a director includes the right to make extra copies of documents at the reasonable expense of the Association. 13.13 Financial Review. A review of the books and records of the Association shall be made annually in the manner as the Board of Directors may decide; provided, however, after having received the Board's financial statements, the Owners, by a majority of the Total Association Vote and the consent of Declarant so long as the Declarant owns any property for development and/or sale in the municipality of Peachtree City, Georgia, may require that the accounts of the Association be audited as a common expense by a certified public accountant. Upon written request of any institutional holder of a first Mortgage and upon payment of all necessary costs, such holder shall be entitled to receive a copy of audited financial statements within ninety (90) days of the date of the request. 13.14 Notice of Sale, Lease or Acquisition. In the event that an Owner leases such Owner's Lot, the Owner shall give to the Association, in writing, prior to the effective date of such lease, the name of the lessee of the Lot and such other info£mation as the Board may reasonably require. Upon acquisition of a Lot each new Owner shall give the Association, in writing, the name and mailing address of the Owner and such other information as the Board may reasonably require. -34- 13.15 Aqreements. Subject to the prior approval of Declarant (so long as the Declarant owns any property for development and/or sale in the municipality of Peachtree City, Georgia) all agreements and determinations, including settlement agreements regarding litigation involving the Association, lawfully authorized by the Board of Directors shall be binding upon all Owners, their heirs, legal representatives, successors, assigns, and others having an interest in the Community or the privilege of possession and enjoyment of any part of the Community. 13.16 Litiqation. No judicial or administrative proceeding shall be commenced or prosecuted by the Association unless approved by at least seventy-five percent (75%) of the Total Association Vote and Declarant consents to such proceeding so long as the Declarant owns any property for development and/or sale in the municipality of Peachtree City, Georgia. This Section shall not apply, however, to (a) actions brought by the Association to enforce the provisions of this Declaration (including, without limitation, the foreclosure of liens), (b) the imposition and collection of assessments as provided in Article IV hereof, (c) proceedings involving challenges to ad valorem taxation, or (d) counterclaims brought by the Association in proceedings instituted against it. This Section shall not be amended unless such amendment is made by the Declarant pursuant to Section 13.04, hereof, or is approved by the percentage votes, and pursuant to the same procedures, necessary to institute proceedings as provided above. 13.17 AirDort. ALL OWNERS AND OCCUPANTS, AS APPLICABLE, ACKNOWLEDGE THAT THE COMMUNITY IS LOCATED WITEIN THE GENERAL VICINITY OF FALCON FIELD, A MUNICIPAL AIRPORT. DECLARANT, THE ASSOCIATION AND THE ARCHITECTURAL REVIEW BOARD DO NOT REPRESENT OR WARRANT THAT ANY MEASURES WILL BE IMPLEMENTED IN THE COMMUNITY TO REDUCE AIRPORT NOISE. EACH OWNER AND OCCUPANT ASSUME ALL RISKS OF PERSONAL INJURY OR PROPERTY DAMAGE ARISING OUT OF THE OWNERSHIP OR OCCUPANCY OF A LOT IN THE COMMUNITY IN THE VICINITY OF THE AIRPORT AND FURTHER ACKNOWLEDGE THAT DECLARANT, THE ASSOCIATION, AND THE ARCHITECTURAL REVIEW BOARD HAVE MADE NO REPRESENTATIONS OR WARRANTIES, NOR HAS ANY OWNER OR OCCUPANT RELIED UPON ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, RELATIVE TO THE EXISTENCE OR ABSENCE OF AIRPORT NOISE OR THE EFFECTIVENESS OF ANY NOISE ABATEMENT PROVIDED OR EXPECTED FROM APPROVED PLANS OR CONSTRUCTION. [CONTINUED ON NEXT PAGE] -35- IN WITNESS WHEREOF, the Declarant herein, hereby executes this instrument by and through its duly authorized officers and under its seal, this day of , 1992. DECLARANT: THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES, a New York corporation By: Title: Attest: Title: Signed, sealed, and delivered this __ day of , 1992, in the presence of: [AFFIX CORPORATE SEAL] WITNESS NOTARY PUBLIC My Commission Expires: [AFFIX NOTARY SEAL] k ~ \PTR~ECT\PLA~T. -36- EXHIBIT "A" Property Submitted To This Declaration of Protective Covenants Upon Filinq in the Public Records Ail that tract or parcel of land lying and being in Land Lot __ of the District, City of Peachtree City, Fayette County, Georgia being designated as Lots (inclusive) as more particularly shown on that certain Final Plat for Planterra Ridge, Unit One, dated , containing the seal of G.R.L.S. No. __, and recorded in Plat Book , page __, Fayette County, Georgia land records reference to said plat of survey and the record thereof being hereby made for a more complete description. EXHIBIT "B" Additional Property Which May Unilaterally Be Submitted To This Declaration of Protective Covenants by Declarant Ail that tract or parcel of land lying and being in Land Lots 58, 59, 60 and 61 of the 6th District and Land Lots 129 and 160 of the 7th district, City of Peachtree City, Fayette County, Georgia. EXHIBIT "C" be:' BYLAWS OF PLANTERRA RIDGE COMMUNITY ASSOCIATION, INC. Prepared By: David N. Dorough, Jr. DODSON, FELDMAN & DOROUGH Attorneys at Law 6000 Lake Forrest Drive, N.W., Suite 300 Atlanta, Georgia 30328 (404) 250-9800 Be 3.08 3.09 3.10 3.11 3.12 3.13 3.14 3.15 3.16 3.17 3.18 3.19 3.20 3.21 ARTICLE IV. 4.01 4.02 4.03 4.04 4.05 4.06 4.07 4.08 ARTICLE V. ARTICLE VI. 6.01 6.02 6.03 6.04 - TABLE OF CONTENTS - (Continued) Meetings. Organization Meetings ............... Regular Meetings .................... Special Meetings .................... Waiver of Notice .................... Quorum of Board of Directors ........ Compensation... Executive Session .................... Action Without A Formal Meeting ...... Telephonic Participation ............. Powers and Duties. Fining or Suspension Procedure ...... OFFICERS ............................ Officers .............. and Vacancies .................... Removal... Vice President ...................... Secretary. Treasurer.~~~~ Resignation ......................... COMMITTEES .......................... MISCELLANEOUS ....................... Fiscal Year ......................... Parliamentary Rules. Conflicts ........... Amendment ........................... Page Number 5 6 6 6 6 6 7 7 7 7 9 10 10 10 10 10 11 11 11 11 11 11 11 -ii- BYLAWS OF PLANTERRA RIDGE COMMUNITY ASSOCIATION, INC. Article I Name, Membership, Applicability, and Definitions 1.01 Name. The name of the Association shall be Planterra Ridge Community Association, Inc. (hereinafter sometimes referred to as the "Association"). 1.02 Membership. The Association shall have one (1) class of membership, as is more fully set forth in that Declaration of Protective Covenants for Planterra Ridge (such Declaration, as amended, renewed, or extended from time to time, is hereinafter sometimes referred to as the "Declaration"), the te~,s of which pertaining to membership are specifically incorporated by reference herein. 1.03 Definitions. The words used in these Bylaws shall have the same meaning as set forth in the Declaration, unless the context shall prohibit. Article II Association: Meetings, Quorum, Voting, Proxies 2.01 Place of Meetings. Meetings of the Association shall be held at the principal office of the Association or at such other suitable place convenient to the members as may be designated by the Board of Directors, either in the Community or as convenient thereto as possible and practical. 2.02 First Meeting and Annual Meetings. An annual meeting of the members shall be held within one (1) year from the date the Declaration is recorded. Annual meetings shall be set by the Board so as to occur no later than sixty (60) days after the close of the Association's fiscal year. 2.03 Special Meetings. The President or the Board of Directors may call special meetings. In addition, it shall be the duty of the President to call a special meeting of the Association upon the delivery of a petition signed and dated by members entitled to cast at least twenty-five percent (25%) of the Total Association Vote. The notice of any special meeting shall state the date, time, and place of such meeting and the purpose thereof. No business shall be transacted at a special meeting, except those matters that are within the purpose or purposes described in the notice. 2.04 Notice of Meetinqs. The Board of Directors shall set the record date for each meeting of the members which shall be not less than seventy (70) days before the meeting. It shall be the duty of the Secretary to mail or to cause to be delivered to the Owner of each Lot (as shown in the records of the Association as of the record date) a notice of each annual or special meeting of the Association stating the date, time and place where it is to be held and in the notice of a special meeting, the purpose thereof. If an Owner wishes notice to be given at an address other than the Lot, the Owner shall designate by notice in writing to the Secretary such other address. The mailing or delivery of a notice of meeting in the manner provided in this Section 2.04 shall be considered service of notice. Notices shall be served not less than ten (10) days (or if notice is mailed by other than first-class or registered mail, thirty (30) days) nor more than sixty (60) days before the meeting. If any meeting of the members is adjourned to a different date, time or place, notice need not be given of the new date, time or place, if the new date, time or place is announced at the meeting before adjournment. If, however, a new record date is or must be fixed under the Georgia Nonprofit Corporation Code, O.C.G.A. Section 14-3-101, et seq., notice of the adjourned meeting shall be given to persons who are members of record as of the new record date. 2.05 Waiver of Notice. Waiver of notice of a meeting of the members shall be deemed the equivalent of proper notice. Any member may, in writing, waive notice of any meeting of the members, either before or after such meeting. Attendance at a meeting by a member, whether in person or by proxy, shall be deemed waiver by such member of notice of the time, date, and place thereof, unless such member specifically objects to lack of proper notice at the time the meeting is called to order. 2.06 Adjournment of Meetinqs. A meeting may be adjourned by a majority vote of the members represented at such meeting; whether or not a quorum is present. 2.07 Membership List. After the record date for any meeting is established by the Board of Directors, the Secretary shall prepare an alphabetical list of the names and addresses of all of the members who are entitled to notice of the meeting. Beginning at least two business days after notice is given of the meeting for which the list was prepared, the list of members shall be available for inspection by any member or a member's agent or attorney at the Association's principal office or at such other reasonable place as may be specified in the notice. In addition, the list shall be available for inspection at the meeting or any adjournment thereof. 2.08 Votinq. The voting rights of the members shall be as set forth in the Articles of Incorporation and the -2- Declaration, and such voting rights are specifically incorporated herein. 2.09 Proxies. At all meetings of members, each member may vote in person or by proxy. All proxy appointment fo~ms shall be in writing, dated, and filed with the Secretary before the appointed time of each meeting. Every proxy shall be revocable and shall automatically cease upon: (a) receipt of notice by the Secretary of the death or judicially declared incompetence of a member; (b) receipt by the Secretary of written revocation signed by the member; (c) receipt by the Secretary of a subsequent appointment fo~m signed by the member; (d) attendance by the member and voting in person at any meeting; or (e) the expiration of eleven (11) months from the date of the proxy appointment fozm. 2.10 Ouorum. The presence, in person or by proxy, of members entitled to cast at least twenty-five percent (25%) of the votes entitled to be cast at the meeting shall constitute a quorum at all meetings of the Association. The members present at a duly called or held meeting at which a quorum is present may continue to do business until adjournment, notwithstanding the withdrawal of enough members to leave less than a quorum. 2.11 Action Without A For~,~l Meetinq. Any action required or pez~tted to be approved by the members may be approved without a meeting if one or more consents, in writing, setting forth the action so taken, shall be signed and dated by members (including the Declarant, if the consent of the Declarant is required) holding the voting power required to pass such action at a meeting held on the record date for such action. The record date for such action shall be the date that the first member signs a consent. Such action shall be approved when the Secretary receives a sufficient number of such consents dated within seventy (70) days of the record date for such action. If less than unanimous consent is obtained, the approval shall be effective ten (10) days after the Secretary gives written notice of the approval to all members who did not sign a consent. Each signed consent shall be included in the minutes of meetings of members filed in the permanent records of the Association. 2.12 Action By Written Ballot. Any action that may be taken at any annual, regular or special meeting of members may be taken without a meeting if approved by written ballot as provided herein. The Association shall deliver a written ballot to each member entitled to vote on the matter. The written ballot shall set forth each proposed action and provide an opportunity to vote for or against each proposed action. All solicitations for votes by written ballot shall indicate the number of responses needed to meet the quorum requirements; state the percentage of approvals necessary to approve each matter other than election of directors; and specify the time by which a ballot must be -3- received by the Association in order to be counted. A timely written ballot received by the Association may not be revoked. Approval by written ballot of an action shall only be valid when the number of votes cast by ballot equals or exceeds the quorum required to be present at a meeting held to authorize such action and the number of approvals equals or exceeds the number of votes that would be required to approve the matter at a meeting at which the total number of votes cast was the same as the number of votes cast by ballot. The results of each action by written ballot shall be certified by the Secretary and shall be included in the minutes of meetings of members filed in the permanent records of the Association. Article III Board of Directors: Number, Powers, Meetings A. Composition and Selection. 3.01 Governinq Body; Composition. The affairs of the Association shall be governed by a Board of Directors. Directors shall be natural persons who are eighteen (18) years of age or older. Except as provided in Section 3.02, each director must reside in the Community and be a member or the spouse of a member; provided, however, no Person and his or her spouse may serve on the Board at the same time. 3.02 Directors Appointed by Declarant. The Declarant shall have the right to appoint or remove any member of the Board of Directors and any officer of the Association until such time as the first of the following events shall occur: (a) the expiration of seven (7) years after the date of the recording of the Declaration; (b) the date on which three hundred fifteen (315) Lots shall have been conveyed to Persons who have not purchased such Lots for the purpose of construction of a residence and resale of such Lot and residence; or (c) the execution and recording by Declarant of an instrument surrendering the authority to appoint and remove directors and officers of the Association. The directors appointed by the Declarant need not be members or residents in the Community. 3.03 Number of Directors. The Board shall consist of three (3) members. 3.04 Nomination of Directors. Elected directors may be nominated from the floor, if a meeting is held for the election of directors and may also be nominated by a nominating committee, if established by the Board. All candidates shall have a reasonable opportunity to communicate their qualifications to the members and to solicit votes. -4- 3.05 Election and Te£m of Office. Member-elected directors shall be elected and hold office as follows: (a) After the Declarant's right to appoint directors and officers terminates, the Association shall call a special meeting (or take action under Section 2.11 or Section 2.12 in lieu of a meeting) and the members shall elect three (3) directors. Member-elected directors shall serve staggered terms. Initially the term of one (1) director shall be fixed at one (1) year, the term of one (1) director shall be fixed at two (2) years, and the term of one (1) director shall be fixed at three (3) years. At the expiration of the initial term of office of each respective member-elected director, a successor shall be elected to serve for a term of two (2) years. The members of the Board of Directors shall hold office until their respective successors shall have been elected and take office. (b) At annual meetings of the membership thereafter (or pursuant to Section 2.11 or Section 2.12 in lieu of a meeting), directors shall be elected as necessary to fill expiring terms. The candidate(s) receiving the most votes shall be elected. 3.06 Removal of Directors. At any annual, regular or special meeting of the Association, any one (1) or more of the members of the Board of Directors elected by the members may be removed, with or without cause, by a majority of the Total Association Vote and a successor may then and there be elected to fill the vacancy thus created. The notice of the meeting shall state that the purpose, or one of the purposes, of the meeting is removal of a director. A director whose removal by the members has been proposed shall be given an opportunity to be heard at the meeting. Additionally, any director who has three (3) consecutive unexcused absences from Board meetings or who is delinquent in the payment of an assessment for more than thirty (30) days may be removed by a majority vote of the remaining directors. 3.07 Vacancies. Vacancies in the Board of Directors caused by any reason, excluding the removal of a director by vote of the Association, shall be filled by a vote of the majority of the remaining directors. Each Person so selected shall serve the unexpired portion of the term. B. Meetinqs. 3.08 Orqanization Meetinqs. The first meeting of a newly elected Board of Directors shall be held within ten (10) days after such election at such time and place as the directors may conveniently assemble. -5- 3.09 Regular Meetings. Regular meetings of the Board of Directors may be held at such time and place as shall be determined from time to time by the Board, but at least four (4) such meetings shall be held during each fiscal year with at least one (1) per quarter. Notice of the regular schedule shall constitute sufficient notice of such meetings. 3.10 Special Meetings. Special meetings of the Board of Directors shall be held when requested by the President, Vice President or by any two (2) directors. The notice shall specify the date, time and place of the meeting and the nature of any special business to be considered. The notice shall be given to each director by one of the following methods: (a) by personal delivery (including commercial delivery service) to such director's home or office; (b) written notice by first class mail, postage prepaid; or (c) by telephone communication (including telecopier), either directly to the director or to a Person at the director's home or office who would reasonably be expected to communicate such notice promptly to the director. All such notices shall be given or sent to the director's address or telephone number as shown on the records of the Association. Notices sent by first class mail shall be deposited with the U.S. Postal Service at least four (4) days before the time set for the meeting. Notices given by personal delivery or telephone shall be given at least two (2) days before the day set for the meeting. 3.11 Waiver of Notice. The business transacted at any meeting of the Board of Directors, however called and noticed or wherever held, shall be as valid as though taken at a meeting duly held after regular call and notice, if (a) a quorum is present, and (b) either before or after the meeting, each of the directors not present signs a written waiver of notice, a consent to holding the meeting, or an approval of the minutes which is included in the minutes or filed with the official records of the Association. The waiver of notice or consent need not specify the purpose of the meeting. Notice of a meeting shall also be deemed given to any director who attends the meeting without protesting before or at its commencement about the lack of adequate notice. 3.12 Quorum of Board of Directors. At all meetings of the Board of Directors, a majority of the directors shall constitute a quorum for the transaction of business, and the votes of a majority of the directors present at a meeting at which a quorum is present shall constitute the decision of the Board of Directors. 3.13 Compensation. No director shall receive any compensation from the Association for acting as such. -6- 3.14 Open Meetinqs. Ail meetings of the Board shall be open to all members, but members other than directors may not participate in any discussion or deliberation unless expressly so authorized by the Board. 3.15 Executive Session. The Board may adjourn a meeting and reconvene in executive session to discuss and vote upon personnel matters, litigation in which the Association is or may become involved, and orders of business of a similar nature. The nature of any and all business to be considered in executive session shall first be announced in open session. 3.16 Action Without A Formal Meeting. Any action required or permitted to be taken at a meeting of the directors may be taken without a meeting if one or more consents, in writing, setting forth the action so taken, shall be signed by a majority of the directors and delivered to the Association for inclusion in the minutes for filing in the corporate records. 3.17 Telephonic Participation. One (1) or more directors may participate in and vote during any meeting of the Board by telephone conference call or any other means of communication by which all directors participating may simultaneously hear each other during the meeting. Any such meeting at which a quorum participates shall constitute a meeting of the Board. C. Powers and Duties. 3.18 Powers. The Board of Directors shall be responsible for the affairs of the Association and shall have all of the powers and duties necessary for the administration of the Association's affairs and, as provided by law, may do all acts and things as are not by law, the Declaration, Articles, or these Bylaws directed to be done and exercised by the members. In addition to the duties imposed by these Bylaws or by any resolution of the Association that may hereafter be adopted, the Board of Directors shall have the power to and be responsible for the following, in way of explanation, but not limitation: (a) preparation and adoption of an annual budget in which there shall be established the contribution of each member to the common expenses; (b) making assessments to defray the common expenses, establishing the means and methods of collecting such assessments; (c) providing for the operation, care, upkeep, and maintenance of all areas which are the maintenance responsibility of the Association; -7- (d) designating, hiring, and dismissing the personnel necessary for the operation of the Association and, where appropriate, providing for the compensation of such personnel and for the purchase of equipment, supplies, and material to be used by such personnel in the performance of their duties; (e) collecting the assessments, depositing the proceeds thereof in a bank depository which it shall approve, and using the proceeds to administer the Association; (f) making and amending rules and regulations; (g) opening of bank accounts on behalf of the Association and designating the signatories required; (h) enforcing by legal means the provisions of the Declaration, these Bylaws, and the rules and regulations adopted by it, and bringing any proceedings which may be instituted on behalf of or against the members concerning the Association; (i) obtaining and carrying insurance against casualties and liabilities, as provided in the Declaration, and paying the premium cost thereof; (j) keeping books with detailed accounts of the receipts and expenditures of the Association and the actions thereof, and specifying the maintenance and repair expenses and any other expenses incurred; and (k) contracting with any Person for the performance of various duties and functions. 3.19 Management Agent. The Board of Directors may employ for the Association a professional management agent or agents at a compensation established by the Board of Directors to perform such duties and services as the Board of Directors shall authorize. The Declarant or an affiliate of the Declarant may be employed as managing agent or manager. The term of any management agreement shall not exceed one (1) year and shall be subject to te~nation by either party, without cause and without penalty, upon ninety (90) days' written notice. 3.20 Borrowing. The Board of Directors shall have the power to borrow money without the approval of the members of the Association; provided, however, except as otherwise provided in the Declaration, the Board shall obtain membership approval in the same manner as for special assessments, in the event that the total amount of such borrowing exceeds or would exceed ten (10%) percent of the annual budget of the Association. 3.21 Fininq or SusDension Procedure. The Board shall not impose a fine (a late charge shall not constitute a fine) or -8- suspend an member's right to vote or to use any part of the Common Property unless and until the following procedure is followed: (a) Notice. Written notice shall be served upon the violator by first-class or certified mail sent to the address of the member shown on the Association's records, specifying: (i) the nature of the violation, the fine or suspension to be imposed and the date, not less than fifteen (15) days from the date of the notice, that the fine or suspension will take effect; (ii) that the violator may, within ten (10) days from the date of the notice, request a hearing regarding the fine or suspension imposed; (iii) the name, address and telephone numbers of a person to contact to challenge the fine or suspension; (iv) that any statements, evidence, and witnesses may be produced by the violator at the hearing; and (v) that all rights to have the fine or suspension reconsidered are waived if a hearing is not requested within ten (10) days of the date of the notice. (b) Hearing. If a hearing is requested, it shall be held before the Board in executive session, and the violator shall be given a reasonable opportunity to be heard. The minutes of the meeting shall contain a written statement of the results of the hearing. No fine or suspension shall be imposed prior to the date that is five (5) days after the date of the hea~ing. Article IV Officers 4.01 Officers. The officers of the Association shall be a President, Vice President, Secretary, and Treasurer. Any two (2) or more offices may be held by the same Person, excepting the offices of President and Secretary. The President and Treasurer shall be elected from among the members of the Board of Directors. 4.02 Election, Term of Office, and Vacancies. Except during the period in which the Declarant has the right to appoint the officers of the Association under Section 3.02 of these Bylaws, the officers of the Association shall be appointed annually by the Board of Directors at the first meeting of the Board of Directors following the election of directors. A vacancy in any office arising because of death, resignation, -9- removal, or otherwise may be filled by the Board of Directors for the unexpired portion of the term. 4.03 Removal. Except for officers appointed by the Declarant, any officer may be removed, with or without cause, by the Board of Directors. 4.04 President. The President shall be the chief executive officer of the Association and shall preside at all meetings of the members and directors. The immediate supervision of the affairs of the Association shall be vested in the President. It shall be the President's duty to attend to the business of the Association and maintain strict supervision over all of its affairs and interests. The President shall keep the Board of Directors fully advised about the affairs and conditions of the Association, and shall manage and operate the business of the Association pursuant to and in accordance with such policies as may be prescribed from time to time by the Board of Directors. 4.05 Vice President. The Vice President shall act in the President's absence or disability and shall have all powers, duties, and responsibilities provided for the President when so acting, and shall perfo£m such other duties as shall from time to time be imposed upon any Vice President by the Board or delegated to a Vice President by the President. 4.06 Secretary. The Secretary shall keep the minutes of all meetings of the members and of the Board of Directors; notify the members and directors of meetings as provided by these bylaws or the Georgia Nonprofit Corporation Code; have custody of the seal of the Association; affix such seal to any instrument requiring the same; attest the signature or certify the incumbency or signature of any officer of the Association; and perform such other duties as the President, or the Board of Directors may prescribe. The Secretary shall perform the duties of the Treasurer of the Association in the absence or disability of the Treasurer. 4.07 Treasurer. The Treasurer shall keep, or cause to be kept, the financial books and records of the Association, and shall faithfully account for the Association's funds, financial assets, and other assets entrusted to the Treasurer's care and custody. The Treasurer shall make such reports as may be necessary to keep the President and the Board of Directors informed at all times as to the financial condition of the Association, and shall perform such other duties as the President, or the Board of Directors may prescribe. The Treasurer shall maintain the money and other assets of the Association in the name and to the credit of the Association in such depositories as may be designated by the Board of Directors. The Treasurer may provide for the investment of the money and other assets of the Association consistent with the needs of the -10- Association to disburse such money and assets in the course of the Association's business. The Treasurer shall perform the duties of the Secretary of the Association in the absence or disability of the Secretary. 4.08 Resiqnation. Any officer may resign at any time by giving written notice to the Board of Directors. Such resignation shall take effect on the date of the receipt of such notice or at any later time specified therein, and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. Article V Committees Advisory committees to perform such tasks and to serve for such periods as may be designated by the Board are hereby authorized. Each committee shall be composed and shall operate in accordance with the terms of the resolution of the Board of Directors designating the committee or with rules adopted by the Board of Directors. An advisory committee shall not be authorized to exercise any authority of the Board under the Articles of Incorporation, the Declaration, these Bylaws or the Georgia Nonprofit Corporation Code. Article VI Miscellaneous 6.01 Fiscal Year. The fiscal year of the Association shall be the calendar year unless otherwise determined by resolution of the Board. 6.02 Parliamentary Rules. Roberts Rules of Order (current edition) shall govern the conduct of all Association proceedings, when not in conflict with Georgia law, the Articles of Incorporation, the Declaration, these Bylaws, or a ruling made by the Person presiding over the proceeding. 6.03 Conflicts. If there are conflicts or inconsistencies between the provisions of Georgia law, the Articles of Incorporation, the Declaration, and these Bylaws, the provisions of Georgia law, the Declaration, the Articles of Incorporation and the Bylaws (in that order) shall prevail. 6.04 Amendment. These Bylaws may be amended by the Board of Directors with the consent of the Declarant (so long as the Declarant owns any property for development and/or sale in the municipality of Peachtree City, Georgia) (a) if such amendment is necessary to bring any provision hereof into compliance with any applicable governmental statute, rule, or -11- regulation or judicial determination which shall be in conflict therewith; (b) if such amendment is necessary to enable any title insurance company to issue title insurance coverage with respect to the Lots subject to the Declaration; (c) if such amendment is required by an institutional or governmental lender or purchaser of mortgage loans, including, without limitation, the Federal National Mortgage Association or Federal Home Loan Mortgage Corporation, to enable such lender or purchaser to make or purchase Mortgage loans on the Lots subject to the Declaration; (d) if such amendment is necessary to enable any governmental agency or private insurance company to insure or guarantee Mortgage loans on the Lots subject to the Declaration. In addition, these Bylaws may be amended upon the affi~L,ative vote of at least two-thirds (2/3) of the Total Association Vote and the consent of Declarant so long as the Declarant owns any property for development and/or sale in the municipality of Peachtree City, Georgia; provided, however, that the U.S. Department of Veterans Affairs (if it is then guaranteeing Mortgages in the Community or has issued a project approval for the guaranteeing of such mortgages) and/or the U.S. Department of Housing and Urban Development (if it is then insuring any Mortgage in the Community or has issued a project approval for the insuring of such mortgages) shall have the right to veto amendments to these Bylaws for as long as the Declarant has the right to appoint and remove the directors and officers of the Association. -12-